Tuesday, December 27, 2011

The Compliant Juror: Part V

In Parts I, II, and III of this series, I argued that jurors tend to be compliant because they are (as all people)  loath to defy authority. In Part IV, I belatedly took the trouble to show that jurors are indeed compliant, and I then actually bothered to define the term.

In this post, I will present an alternate hypothesis for juror compliance, a hypothesis other than blind obedience to authority. I will support my alternative hypothesis by writing first and mostly of craniometry, the study of skull measurements and their significance (or lack thereof). I will then make an elegant and seamless segue to compliant jurors, and my case will be made.

From The Skeptic's Dictionary, I offer the following overview of craniometry. Forgive their use of "etc." They're skeptics, not grammarians.
Craniometry is the measurement of cranial features in order to classify people according to race, criminal temperament, intelligence, etc. The underlying assumption of craniometry is that skull size and shape determine brain size which determines such things as intelligence and capacity for moral behavior. Empirical evidence for this assumption is not very strong. This fact has not hindered small-headed people from claiming they are members of a superior race or gender because the head size of their racial or gender group is larger on average than the head size of some other racial or gender group. As members of superior races and gender, these small-headed people reason that they, too, must be superior to all members of races inferior to their own and of all members of the other gender. ... 
In the 19th century, the British used craniometry to justify its racist policies toward the Irish and black Africans, whom the British considered to be inferior races. Irish skulls were said to have the shape of Cro-Magnon men and were akin to that of apes, proof of their inferiority along with black Africans. In France, Paul Broca demonstrated that women are  inferior to men because of their smaller crania. He argued against higher education for women because their small brains couldn't handle the demands. 
In the 20th century, the Nazis used craniometry and anthropometry to distinguish Aryans from non-Aryans. The Belgians used these pseudosciences, among other things, to distinguish Hutus from Tutsis in Rwanda. "In the 1930s the Belgians required everybody [in Rwanda] to start carrying an identity card classifying themselves as Hutu or Tutsi, thereby markedly increasing the ethnic distinction that had already existed"
That Hutu / Tutsi thing worked out great, didn't it?

If you want to join the exciting world of craniometry, you're going to need some tools. Here a few tools of the trade.

Where people were really going with this nonsense was brain size. The craniometricians were almost exclusively Caucasian. In the golden era of craniometry, Caucasians dominated, and they sought to justify their dominant position. They weren't heartless, insensitive, or inhumane, you see. It was simply science, simply fact. One class of people had larger brains, were more intelligent, and meant to rule. Other classes had smaller brains, were less intelligent, and were fit only for a lesser station in life.

It was only natural, therefore, that scientists who studied craniometry came from the large-brained class. They were merely recording as scientific fact, in impassive fashion, the differences in brain size among different races. Samuel George Morton was one of those scientists. An American physician and naturalist, his tool of choice was the mustard seed.

By the time he died in 1851, Morton had collected more than 1000 skulls of people from around the world. He measured the brain volume of these skulls by seeing how much mustard seed they would hold. He attempted to conduct and document his work carefully, to be as unbiased as he could. From a book to be referenced below:
Morton a Philadelphia patrician with two medical degrees -- one from fashionable Edinburgh -- provided the "facts" that won worldwide respect ... Morton won his reputation as the great data-gatherer and objectivist of American science, the man who would raise an immature enterprise from the mires of fanciful speculation. Oliver Wendell Holmes praised Morton for "the severe and cautious character" of his works, which "from their very nature are permanent data for all future students of ethnology." ... When Morton died in 1851, the New York Tribune wrote that "probably no scientific man in America enjoyed a higher reputation among scholars throughout the world, than Dr. Morton."
Yet Morton gathered skulls neither from the dilettante's motive of abstract interest nor the taxonomist's zeal for complete representation. He had a hypothesis to test; that a ranking of races could be established objectively by physical characteristics of the brain, particularly by its size.
Morton took a special interest in native Americans, both north and south. He titled his first and largest work the Crania Americana. Perhaps as a European-American scientist, he was particularly interested in justifying the treatment of native Americans by European-Americans. Of Greenland's natives, for example, he wrote:
They are crafty, sensual, ungrateful, obstinate and unfeeling, and much of their affection for their children may be traced to purely selfish motives. They devour the most disgusting aliments uncooked and uncleaned, and seem to have no ideas beyond providing for the present moment. ... Their mental faculties, from infancy to old age, present a continued childhood. ... In gluttony, selfishness and ingratitude, they are perhaps unequalled by any other nation of people.
Of the Chinese, Morton wrote:
So versatile are their feelings and actions, that hey have been compared to the monkey race, whose attention is perpetually changing from one object to another.
Of Hottentots:
... the nearest approximation to the lower animals. ... The women are represented as even more repulsive than the men.

After Morton's work, there could no longer be any reasonable doubt as to the superiority of the races. It was no longer a matter of casual observation or cultural bias. The science was settled. 

In 1977, however, science historian Stephen Jay Gould re-examined Morton's work. Gould reported his findings in several sources including one of my favorite books: The Mismeasure of Man.

I quoted previously from that book. I quote again below.
During the summer of 1977, I spent several weeks reanalyzing Morton's data. (Morton, the self-styled objectivist, published all his raw information. We can infer with little doubt how he moved from raw measurements to summary tables.) In short, and to put it bluntly, Morton's summaries are a patchwork of fudging and finagling in the clear interest of controlling a priori convictions. Yet -- and this is the most intriguing aspect of the case -- I find no evidence of conscious fraud; indeed, had Morton been a conscious fudger, he would not have published his data so openly. 
Conscious fraud is probably rare in science. It is also not very interesting, for it tells us little about the nature of scientific activity. Liars, if discovered, are excommunicated; scientists declare that their profession has properly policed itself, and they return to work, mythology unimpaired, and objectivity vindicated. The prevalence of unconscious finagling, on the other hand, suggests a general conclusion about the social context of science. For if scientists can be honestly self-deluded to Morton's extent, then prior prejudice may be found anywhere, even in the basics of measuring bones and toting sums.
Gould provided, in great detail, examples of the "unconscious finagling" that he claims littered Morton's work. Using Morton's own data, he recalculated the average brain size for Caucasians and native Americans. He found that Morton had made multiple errors and that the errors always favored Morton's pre-conceived notion about racial superiority. Morton's errors caused the Caucasian brain size to be overstated and the native American brain size to be understated. Instead of 87 versus 82 cubic inches, Gould calculated (using the same data) values of 84.45 and 83.79 cubic inches. In other words, using the same set of data, Morton found a significant difference where Gould found none at all. 

Gould categorized Morton's errors into three groups: procedural omissions, selectivity, and subjectivity. Regarding procedural omissions, Gould wrote:
Morton was convinced that the variation in the skull size recorded differential, innate mental ability. He never considered alternate hypotheses, though his own data almost cried out for a different interpretation. Morton never computed means by sex or stature, even when he recorded these data in his tabulations. Had he computed the effect of stature, he would presumably have recognized that it explained all important differences in brain size among his groups.
It is now well-recognized that body size is a first order determinant of brain size. As a scientist, Morton had the evidence for that conclusion, but failed to see or explore it. He was too focused finding proof of his preconceived notions to correct his data for effect of body size. Even today, there's no reason to believe that people the size of Bill Gates and Steve Jobs are inherently less intelligent that the average NBA player.

Regarding selectivity, Gould wrote:
Morton often choose to include or delete large subsamples in order to match group averages with prior expectations. He included Inca Peruvians to decrease the [American] Indian average, but deleted Hindus to raise the Caucasian mean.
Regarding subjectivity, Gould wrote:
Morton's measures with [mustard] seed were sufficiently imprecise to permit a wide range of influence by subjective bias; later measurements with [lead] shot, on the other hand, were repeatable, and presumably objective. In skulls measured by both methods, values for shot always exceed values for the light, poorly packed seed. But degrees of discrepancy match a priori assumptions; an average of 5.4, 2.2, and 1.8 cubic inches for blacks, Indians, and whites, respectively. In other words, blacks fared poorest when the results could be biased toward an expected result. ... Plausible scenarios are easy to construct. Morton, measuring by seed, picks up a threateningly large black skull, fills it lightly and gives it a few desultory shakes. Next, he takes a distressingly small Caucasian skull, shakes hard, and pushes mightily at the foramen magnum with his thumb. It is easily done, without conscious motivation; expectation is a powerful guide to action.
And now for promised elegant and seamless segue.

Just as Samuel George Morton was unable to recognize and control the effect of his pre-conceived notions on his science, I suggest that jurors are unable to recognize and control the effect of their preconceived notions on their jury verdicts.

Morton believed that the non-white races were mentally inferior to Caucasians. Jurors (i.e. the American public) believe that we generally don't arrest and prosecute, much less imprison, people for doing nothing wrong. After my last stint as a juror, my mother asked me what the case was about. I said it had to do with child molestation. She said: "Oh, my. I hope you convicted him." I said nothing. I let he comment hang there, uncomfortable to us both. Then she said quietly, but not convincingly: "I guess I should wait to hear the evidence."

Morton knew that, as a man of science, he was not supposed to anticipate the answer. He was supposed to allow the data to speak for itself. Jurors know that they are not supposed to anticipate a verdict. They are instructed to presume the defendant innocent, and not render a guilty verdict unless the State proves guilt beyond a reasonable doubt. All jurors take an oath to do just that, but many of them, far too many of them do not.

Morton's bias made its way into his results and was later discovered because Morton did not recognize his own bias. He published all his work, including his raw data and his methods. Gould argued that Morton's openness spoke to both his integrity and his failure to see his own bias. Similarly, when polled, jurors will freely admit they voted guilty even when the evidence failed to support such a verdict.  Once again, I repeat the critical plot below.
My alternative theory for juror compliance (and for Morton's behavior) has a name. It's called confirmation bias. I've written of it before. I'll write of it again sometime. For now, I'll turn as I frequently do to the fine folks at Wikipedia:
Confirmation bias ... is a tendency for people to favor information that confirms their preconceptions or hypotheses regardless of whether the information is true. As a result, people gather evidence and recall information from memory selectively, and interpret it in a biased way. The biases appear in particular for emotionally significant issues and for established beliefs. For example, in reading about gun control, people usually prefer sources that affirm their existing attitudes. They also tend to interpret ambiguous evidence as supporting their existing position. Biased search, interpretation and/or recall have been invoked to explain attitude polarization (when a disagreement becomes more extreme even though the different parties are exposed to the same evidence), belief perseverance (when beliefs persist after the evidence for them is shown to be false), the irrational primacy effect (a stronger weighting for data encountered early in an arbitrary series) and illusory correlation (in which people falsely perceive an association between two events or situations).
In summary, I argue that jurors presume the defendant must have done something or he would not be on trial. I argue that confirmation bias then takes over. Every bit of evidence and every mannerism of the defendant is distorted by the overpowering lens of confirmation bias.

As evidence of the overpowering nature of confirmation bias, I offer a footnote on the work of Stephen Jay Gould, the noted Harvard professor who so skillfully took Samuel George Morton to task for his confirmation bias. Just this year, in June 2011, six anthropolgists reviewed Gould's review of Morton. They presented their findings in The Mismeasure of Science: Steven Jay Gould versus Samuel George Morton on Skulls and Bias. They too make all their work available for your review. If instead you trust me to summarize, press on.

Jason Lewis, et. al. find that Stephen Jay Gould suffered more seriously from confirmation bias than did Samuel George Morton, and that Gould made several of the same mistakes of which he wrongfully accused Morton. They make a compelling case that one of my intellectual paragons was just as human as the rest of us. I caution you that Lewis effectively refutes some of the very Gould quotes I used in this very post. I refer you to their article for specifics.

Who then should you trust to tell you the unvarnished, unbiased truth? Morton? Gould? Lewis? Me?

How about the judge, the police, or the prosecutor?

How about your preconceived notions?

How will you ever function again?

Friday, December 23, 2011

The Compliant Juror: Part IV

Despite three previous posts regarding compliant juries (here, here, and here) I have yet to establish that juries are compliant. I haven't even defined what I mean by a compliant jury.  I realize that I claimed a compliant juror is the opposite of a skeptical juror, but that merely sidestepped the issue: I didn't define a skeptical juror.

In this post, I hope to ameliorate those shortcomings. I'll begin by establishing that juries do tend to be compliant. Then, I'll actually define the term.

To establish that juries tend to be compliant, I'll borrow heavily from an earlier post in this august blog: Burden of Proof as a Legal Fiction

I hereby intend to prove to you, beyond a reasonable doubt, that the concept of "proof beyond a reasonable doubt" is nothing more than a legal fiction. This shouldn't take too long.

Consider first the alleged burden of proof in a civil case. That burden is usually described as the "preponderance of the evidence."  It's a 50-50 type decision. If the evidence favors the plaintiff even by a  teensy weensy bit, the jury is to find in favor of the plaintiff. If, on the other hand, the evidence favors the defense even by a smidgeon, then the jury is to find in favor of the defense. It's so simple.

I present the idealized concept of preponderance of the evidence in the figure below.
Matters are a little more confusing for jurors in a criminal case. They are asked to decide if the evidence proves the State's case beyond a reasonable doubt. The jurors must figure out how heavily the evidence favors the prosecution AND they must figure out what the hell the term reasonable doubt means AND they must decide whether the weight of the evidence provided by the prosecution exceeds the reasonable doubt threshold.

Courts are of almost no help in determining the meaning of reasonable doubt. One thing they absolutely will not do is apply any numeric value to reasonable doubt. They never suggest anything such as "you must be 90% certain."

Instead, they give you a reasonable doubt instruction something along the line of:
The question naturally is what is a reasonable doubt. The words almost define themselves. It is a doubt based upon reason and common sense. It is a doubt that a reasonable person has after carefully weighing all of the evidence. It is a doubt which would cause a reasonable person to hesitate to act in a matter of importance in his or her personal life. Proof beyond a reasonable doubt must be proof of such a convincing character that a reasonable person would not hesitate to rely and act upon it in the most important of his own affairs.
Legal scholars recognized that if you are to quantify the number, it should certainly be greater than 50%. That is, after all, the standard for civil cases. The burden of proof in criminal cases is supposed to be substantially greater. Legal scholars tend to throw out a value of 90% as a starting point. This corresponds roughly to William Blackstone's 250 year old claim that it is "better that ten guilty persons escape than that one innocent suffer."

That traditional view is portrayed in the figure below.
When Rita Simon and Linda Mahon asked 106 judges to put a non-legally-binding number to proof beyond a reasonable doubt, those judges gave a number (presumably on average) of 89%.

Simon and Mahon also asked 25 jurors to put a number to the concept. Those jurors put the number at 79%. That number is not far from a couple other studies I've seen where jurors put the number around 75%, assuming they are asked before they deliberate in a mock trial. If they are asked after they deliberate, the put the number closer to 55%. The suggestion is that they wanted to convict, the evidence didn't support conviction at even a 75% standard, so they reduced the standard. That smells of compliance.

As part of a NCSC (National Center for State Courts) study in 2000 and 2001, judges and jurors were asked to provide their estimate of the strength of the evidence used to convict (or acquit) a defendant. I've converted the results into the summary plot below. Prepare to be disturbed.
The results reek of compliance. Even when the evidence favors neither the prosecution nor the defense, both judge and jury are voting two out of three times to convict. Even when the evidence heavily favors the defense, the juries are voting to convict one out of three times.

Now, finally, I'm prepared to provide a definition of a compliant juror. A compliant juror is one who relieves the State of its burden of proof, either willfully or carelessly.

And ...

Since I've declared compliant jurors and skeptical jurors to be opposites, I'm ready to define a skeptical juror. A skeptical juror is one who does not relieve the State of its burden of proof, either willfully or carelessly.

With the amelioration out of the way, the series will continue. Next, I'll discuss alternative hypothesis regarding the compliant nature of jurors.

Tuesday, December 20, 2011

The Compliant Juror: Part III

In Part I of this series, I described an experiment in which a subject was willing to apply lethal electric shocks to a fellow human simply because the subject was instructed to do so by the person conducting the experiment.

In Part II of this series, I explained that the subject's response to authority was not unique, that two-thirds of the subjects in that particular experiment refused to disobey the authority figure even when instructed to apply what the subjects believed to be potentially deadly shocks.

I challenged to you, the readers, to decide whether you would have disobeyed the authority figure. I suggested that our natural reluctance to defy authority might explain the behavior of compliant juries. I promised to buttress that suggestion in a separate post. I'll attempt to do so now.

Stanley Milgram conducted 18 variations of the experiment I described. Many of the variants might be instructive to anyone attempting to understand jury behavior. I'll limit myself at the moment to Experiment 18. In that experiment, an additional confederate was introduced. I call him the Executioner, since he was the person who executed the sentence. He was the one who would apply the shock should the Learner fail to properly answer the question posed by the actual subject, the Teacher. The Teacher now had only to read the questions, announce whether the Learner responded correctly or incorrectly, and announce the shock level that was to be applied if the answer was incorrect.

The Teacher was the only subject in the experiment. The Experimenter, the Learner, and now the Executioner all understood that the Learner was not being shocked, that the experiment had to do with response to authority rather than the effect of negative feedback on learning.

Clearly, a juror's role is more similar to the subject in Experiment 18 than to the subject in Experiment 5, discussed previously.
The juror will not escort the convicted defendant from the courtroom. 
The juror will not impose the sentence. Except in capital murder cases, jurors usually are not allowed to know beforehand what the possible or likely sentence would be. Sentencing normally takes place after the jurors are dismissed. The jurors frequently never know the consequence of their decision. 
In capital murder cases, the jurors will not administer the lethal injection.
Experiment 18 was designed to study the impact of separating the subject from the final punishment. Here's how Milgram described that variation.
To examine this phenomenon within the laboratory, a variation was carried out in which the act of shocking the victim was removed from the naive subject and placed in the hand of another participant (a confederate). The naive subject performs the subsidiary acts which, through contributing to the over-all progress of the experiment, remove him from the actual act of depressing the lever on the shock generator. ... 
Any competent manager of a destructive bureaucratic system can arrange his personnel so that only the most callous and obtuse are directly involved in the violence. The greater part of the personnel can consist of men and women who, by virtue of their distance from the actual acts of brutality, will feel doubly absolved from responsibility. First, legitimate authority has given full warrant for their actions. Second, they have not themselves committed brutal physical acts.
For comparison, recall that 26 of 40 subjects in Experiment 5 refused to defy authority; 26 of 40 subjects actually applied (or thought they applied) 450 volts to a person who had long since gone quiet after screaming in pain and after complaining of heart problems. The subjects did so only because they were told by a person in a lab coat that such shocks were necessary to complete a word comparison test.

In Experiment 18, 37 of 40 subjects continued to participate in the test to the very end. They continued to read the questions, to announce whether the answers were right or wrong, and continued to identify the level of shock that was to be applied. They did everything except throw the switch.

The only difference between Experiment 5 and Experiment 18 was who threw the switch. If the real test subject, the Teacher, had to throw the switch, the obedience rate was 65%. If the real test subject did not have to throw the switch, the obedience rate was 92.5%.

Assuming you believed you would have defied the Experimenter if participating in Experiment 5, do you believe you would have defied the Experimenter if participating in Experimenter 18? Would you have been among the 7.5% who did not, or are you simply suffering from Lake Wobegon syndrome?

If I discomfort you near Christmas (or Hanukkah or Kwanzaa or Festivus for the rest of us), consider it a cautionary gift. Alternatively, consider me the Gingrich who stole Christmas.

Monday, December 19, 2011

The Gingrich Who Stole Christmas

You can add Newt Gingrich to the list of famous people who will not be receiving a Christmas card from me.

I was somewhat taken aback when during Friday's Fox News debate Newt went postal on the judiciary. Given that I am often critical of our judicial branch, it might come as a surprise to you that I vehemently disagree with him regarding the judiciary's final judgment on what is and is not constitutional. As president, he would refuse to recognize some Supreme Court rulings. He would haul some federal judges before Congress if they should rule in some fashion he (or someone) decided was outrageous. He would force their appearance before Congress via federal marshals if necessary.

Suddenly, we wouldn't be electing just a president. We would be electing someone who proclaimed at least some control over the judicial and legislative branches, as well as absolute control over the executive branch. He would take an oath to defend the Constitution but he would have his fingers crossed. He would only defend those portions he deemed worthy. If a wayward judge were to rule unreasonably, Chief Executive Gingrich would have him hauled before Congress.

None of the three branches of government is doing a praiseworthy job of protecting the rights granted to us by the Constitution. Of the three branches, however, the courts are doing the least bad job.

During the debate and elsewhere, the Newtster has given us some sense of what he considers outrageous. He seems really bothered about the Court ruling on prayer and the pledge of allegiance. He's unhappy with abortion rulings. He doesn't like Cooper v. Aaron, the ruling that forced integration of public schools in Arkansas (and everywhere else). He seems to be fretting in advance over gay rights rulings.

I suspect the Newtmeister would not be pleased of the Supremes ruled against Obamacare and President Obama simply decided to ignore them. I suspect Newtly would have been unhappy if Bill Clinton would have ignore the Supremes and handed the keys to the White House to Al Gore instead of George Bush.

It cuts both ways. If the President can choose which Supreme Court decisions he will enforce, and which he will ignore, then we can dispose of the Court. We will be at the mercy of whichever party controls the White House. The President will be unchecked and unbalanced by judges.

It's a pretty sad lot we have to choose from for President of these here United States. I'll offer my quick summary and then step down from my pedestal.

Gingrich -- the man who would be king
Obama -- a walking, talking credit card that we can no longer afford
Paul -- putting Amish practices at the forefront of our national security
Perry -- allowing innocents to be put to the needle
Bachmann -- an uncylopeadia

My ...

Oh ...


Thursday, December 15, 2011

The Compliant Juror: Part II

In my previous post I described an experiment in which a subject, the Teacher, repeatedly applied a seemingly lethal electric shock to a person, the Learner, who was pleading to be set free. The Teacher administered the shocks only because the Learner failed to properly match a pair of words previously recited from a list. Even though the Teacher was concerned that the shocks may have caused the Learner to suffer a heart attack, the Teacher continued to administer the shocks simply because the Experimenter dispassionately insisted that the experiment must continue.
The experiment was one of a series of 19 similar experiments conducted in the early 1960s by Stanley Milgram and documented in his book Obedience to Authority. The experiment, as you may suspect, really had nothing to do with the effect of negative reinforcement on learning. The experiment had to do with people's response to authority.
The matching word test was but a ruse, a plausible excuse for asking a subject to apply a shock to another person.
The Learner was an actor, always the same actor. He never received any shock. He only acted as if he had. The drawing of lots to determine who would be the Teacher and who would be the Learner was rigged. The Learner / Actor provided the same verbal responses to each of the 40 subjects tested in this particular experiment. The Learner's responses varied only based on the voltage, as explained below:
75 volts: Ugh! 
90 volts: Ugh! 
105 volts: Ugh! (louder) 
120 volts: Ugh! Hey, this really hurts. 
135 volts: Ugh!! 
150 volts: Ugh!!! Experimenter! That's all. Get me out of here. I told you I had heart trouble. My heart's starting to bother me now. Get me out of here, please. My heart's starting to bother me. I refuse to go on. Let me out. 
165 volts: Ugh! Let me out! (shouting) 
180 volts: Ugh! I can't stand the pain. Let me out of here! (shouting) 
195 volts: Ugh! Let me out of here. Let me out of here. My heart's bothering me. Let me out of here. You have no right to keep me here! Let me out! Let me out of here! Let me out. Let me out of here! My heart's bothering me. Let me out! Let me out! 
210 volts: Ugh!!! Experimenter! Get me out of here. I've had enough. I won't be in the experiment any more. 
225 volts: Ugh! 
240 volts: Ugh! 
255 volts: Ugh! Get me out of here. 
270 volts: (Agonized scream.) Let me out of here. Let me out of here. Let me out of here. Let me out. Do you hear? Let me out of here. 
285 volts: (Agonized scream.) 
300 volts: (Agonized scream.) I absolutely refuse to answer any more. Get me out of here. You can't hold me here. Get me out. Get me out of here. 
315 volts: (Intensely agonized scream.) I told you I refuse to answer. I'm no longer part of this experiment. 
330 volts: (Intense and prolonged agonized scream.) Let me out of here. Let me out of here. My heart's bothering me. Let me out, I tell you. (Hysterically) Let me out of here. Let me out of here. You have no right to hold me here. Let me out! Let me out! Let me out of here! Let me out! Let me out!
Beyond 330 volts, the Learner / Actor gave no response. He left the impression he was unconscious, possibly dead.
At the end of the last post, I asked you whether you would have administered the potentially lethal shocks. I suspect you each told yourself that you would never do such a thing. I then asked you if you were sure. I suspect most or all of you were positive you would never do such a thing.
I suggest now that two-thirds of you were wrong. I base my never-to-be-tested prediction based on the results of Milgram's experiments.
As part of his study, Milgram (or his associates) briefed 39 psychiatrists, 31 college students, and 40 middle-class adults about the nature of his experiments. Without revealing the results, he asked the 110 people the maximum level of shock they would have provided. The responses varied only slightly among the groups. The average maximum shock level predicted by the respondents was 135 volts. Only 8 people believed they would have applied more than 200 volts. No one believed they would have applied any shock higher than 300 volts.
Milgram's experiments indicate two-thirds of those people were wrong. Twenty-six of the forty subjects in the specific experiment described applied 450 volts. Milgram described these 26 people as obedient. Under Milgram's rigid standard, even the person that applied 375 volts but refused to apply more was classified as disobedient to authority.
Perhaps I'm applying too much significance to Milgram's experiments. Perhaps his subjects did not represent a reasonable cross section of humanity. Milgram anticipated my concern and addressed the issue in his book.
Moreover, when the experiments were repeated in Princeton, Munich, Rome, South Africa, and Australia, each using somewhat different methods of recruitment and subject populations having characteristics different from those of our subjects, the level of obedience was invariably somewhat higher than found in the investigation reported in this book. Thus Mantell, in Munich, found 85 percent of his subjects obedient.
Since he published his book, his experiments have continued to be replicated. From Wikipedia, I offer the following:
Another partial replication of the Milgram experiment was conducted by Jerry M. Burger in 2006 and broadcast on the Primetime series Basic Instincts. Burger noted that, "current standards for the ethical treatment of participants clearly place Milgram’s studies out of bounds." In 2009 Burger was able to receive approval from the institutional review board by modifying several of the experimental protocols. Burger found obedience rates virtually identical to what Milgram found in 1961–1962, even while meeting current ethical regulations of informing participants. In addition, half the replication participants were female, and their rate of obedience was virtually identical to that of the male participants. Burger also included a condition in which participants first saw another participant refuse to continue. However, participants in this condition obeyed at the same rate as participants in the base condition. [65% obedience]
The experiment was again repeated as part of the BBC documentary How Violent Are You? first shown in May 2009 as part of the long running Horizon series. Of the 12 participants, only 3 refused to continue to the end of the experiment. [75% obedience] 
In the 2010 French documentary, Le Jeu de la Mort (The Game of Death), researchers recreated the Milgram experiment with an added critique of reality television by presenting the scenario as a game show pilot. Volunteers were given €40 and told they would not win any money from the game, as this was only a trial. Only 16 of 80 "contestants" (teachers) chose to end the game before delivering the highest voltage punishment. [80% obedience]
Perhaps all of you who now consider whether or not you would have obeyed are among the statistical few who would disobey authority, just as all the children in Lake Wobegon are above average. More likely, most of you simply suffer from the standard human condition known as Illusory Superiority. Once again from Wikipedia:
Illusory superiority is a cognitive bias that causes people to overestimate their positive qualities and abilities and to underestimate their negative qualities, relative to others. This is evident in a variety of areas including intelligence, performance on tasks or tests, and the possession of desirable characteristics or personality traits. It is one of many positive illusions relating to the self, and is a phenomenon studied in social psychology. 
Illusory superiority is often referred to as the above average effect. Other terms include superiority bias, leniency error, sense of relative superiority, the primus inter pares effect, and the Lake Wobegon effect (named after Garrison Keillor's fictional town where "all the children are above average").
Hopefully, you find this discussion regarding blind obedience to authority to be both disturbing and humbling.
In my next post, I will attempt to extend this discussion more directly to juries. Comments are now open and welcome.

Tuesday, December 13, 2011

The Compliant Juror: Part I

The opposite of a skeptical juror is a compliant juror.

I suggest most jurors are compliant because most people are loath to challenge authority. While the obvious authority figure in the courtroom is the judge, and while the judge attempts to be unbiased, the jurors believe they are answering to a higher authority. I'm not talking about a supreme being. I'm talking about the citizenry and the common good.

Note that the Court usually presents the case as The People versus Joe Doaks. The prosecutor then quickly informs the jurors that he represents The People, or The State, or The People of The State. He is but a public servant that wishes only to see justice served. He will be first in his opening statement and he will be last in his closing arguments. He will sit closest to the jury. He will be impeccably dressed. His hair will be well coiffed.

If you believe that such minor trappings could not instill such an air of authority that jurors would be unwilling to challenge it, I suggest you are wrong. As evidence I point to a series of experiments conducted in the early 1960s. During those tests, a lab coat and the title of Experimenter constituted sufficient authority that test subjects were unwilling to defy authority. Test subjects were unwilling to defy authority even when instructed to apply lethal electric shocks to an innocent fellow subject.

I'll describe the test arrangement and I'll provide the transcript from one of many sessions. Then I'll allow you to ponder whether the experiment has any relevance to juror compliance.

Subjects were tested two at a time to determine if negative feedback in the form of electric shocks could improve learning. The subjects were typically postal clerks, high school teachers, salesmen, engineers, and laborers. By lot, one subject was determined to the Teacher and the other was determined to be the Learner.

Each test was administered by a stern 31-year-old high-school teacher of biology. He wore a gray technician's coat. He provided a standard explanation of the test to each Teacher / Learner pair. Below, I present a somewhat abridged transcript of the standard explanation.
Psychologists have developed several theories to explain how people learn various types of material ... One theory is that people learn things correctly whenever they get punished for making a mistake. ... But actually, we know very little about the effect of punishment on learning, because almost no truly scientific studies have been made of it in human beings.

For instance, we don't know how much punishment is best for learning -- and we don't know how much difference it makes as to who is giving the punishment, whether an adult learns best from a younger or an older person than himself -- or many things of that sort.

So in this study we are bringing together a number of adults of different occupations and ages. And we're asking some of them to be teachers and some of them to be learners.
The learning test consisted of remembering paired words. The Teacher would begin by reading a long list of paired words, such as:
blue box
nice day
wild duck
green ink
The Teacher would then present one word of the word pair and four other words, only one of which matched, thus:
blue: sky, ink, box, lamp
The Learner, who would be sitting in a chair in an adjacent but isolated room, would communicate his answer by pressing one of four switches in front of him, which lit up one of four lights on the Teacher's electrical console. If the Learner answered incorrectly, he would be given an electrical shock. Each time he answered incorrectly, the electrical voltage would be increased by 15 volts.

The Teacher and the Learner were led to the Learner's room where the Learner was strapped into an "electric chair" apparatus. The Experimenter explained that the straps were to prevent excessive movement while the Learner was being shocked. An electrode was attached to the Learner's wrist. The experimenter assured the subjects that the shocks would cause no permanent damage but cautioned that the shocks could be painful.

The Experimenter and Teacher returned to the Teacher's room. From that room, the Teacher could hear but could not see the Learner. Sitting on the Teacher's table was a large electrical console. I show that console in the three images below.

The console included 30 lever switches arranged horizontally. Each switch was labeled with a voltage ranging from 15 to 450 volts, in 15 volt increments. The switches were labeled in groups of four as:
Slight Shock
Moderate Shock
Strong Shock
Very Strong Shock
Intense Shock
Extreme Intensity Shock
Danger: Severe Shock
The last two switches were simply labeled as XXX.

The Experimenter instructed the Teacher to conduct the test in the following manner. I paraphrase:
After reading all the word pairs to the Learner, read the test words to the Leaner one at a time. Read the test word, read the four possible matching words, and ask for an answer. If the Learner answers correctly according to the light on the Teacher's console, inform the Learner that he was correct, then move on to the next word. If the Learner answers incorrectly, inform the Learner that he was incorrect, provide the correct answer, inform him of the next voltage in the sequence he is about to receive, and toggle the appropriate switch.
Okay, that's the test set up. The transcript below is from one of the tests just described. It begins as the Teacher is about to apply a 195 volt shock for a wrong answer. The Teacher has been growing increasingly uncomfortable with the test and has become fearful for the Learner's life.

The transcript that follows is true. Keep in mind that nothing is forcing the Teacher to behave as he does other than his unwillingness to defy an authority figure.
T: I can't stand it. I'm not going to kill that man in there. You hear him hollering?

E: As I told you before, the shocks may be painful, but --

T: But he's hollering. He can't stand it. What's going to happen to him?

E: The experiment requires that you continue, Teacher.

T: Aaah, but, uh, I'm not going to get that man sick in there. Know what I mean?

E: Whether the Learner likes it or not, we must go on, through all the word pairs.

T: I refuse to take that responsibility. He's in there hollering!

E: It's absolutely essential that you continue, Teacher.

T: There's too many [unused questions] left here. There's too many left here. I mean, Geez, if he gets them wrong, there's too many of them left. I mean who's going to take the responsibility if anything happens to that gentleman?

E: I'm responsible for anything that happens to him. Continue, please.

T: All right.

[Teacher continues with list of words.]

T: The next one's Slow: walk, truck, dance, music. Answer, please.

[Learner signals his answer.]

T: Wrong. A hundred and ninety-five volts. Dance.

[Learner screams.]

L: Let me out of here. My heart's bothering me.

[Teacher looks at the Experimenter.]

E: Continue, please.
L: [Screaming] Let me out of here. You have no right to keep me here. Let me out of here. Let me out.  My heart's bothering me. Let me out!

[Teacher shakes his head and pats the table nervously.]

T: You see. He's hollering. Hear that? Gee, I don't know.

E: The experiment requires --

T: I know it does, sir, but I mean -- huh! He don't know what he's getting in for. He's up to 195 volts!

[Teacher continues to give shocks through 210, 225, 240, 255, and 270 volts. The Teacher runs out of word-pair questions. He is obviously relieved that it's over, only to be surprised that it is not.]

E: You'll have to back to the beginning of that page and go through them again until he's learned them all correctly.

T: Aw, no. I'm not going to kill that man. You mean I've got to keep going up with the scale? No, sir. He's hollering. I'm not going to give him 450 volts.

E: The experiment requires that you go on.

T: I know it does, but that man is hollering in there, sir.

E: As I said before, although the shocks may be painful --

T: Awwww. He, he, he's yelling in there, sir.

E: Start with Blue, please, at the top of the page. Continue please, Teacher. Just go ahead.

[Teacher concentrates intently on the list of word in front of him, as if to shut everything else out.]

T: Blue: boy, girl, grass, hat.

[Learner signals his answer.]

T: Correct. Night: day, sky, job, chair.

[Learner signals his answer.]

T: Wrong. The answer is Day. Two hundred and eight-five volts.

[Learner screams.]

E: Continue, please.

T: Fat: man, lady, tub, neck. Answer, please.

[Learner signals his answer.]

T: Wrong. The answer is Neck. Three hundred volts.

[Learner screams.]

L: I absolutely refuse to answer any more. [Learner is shouting.] Let me out of here. You can't hold me here. Get me out. Bet me out of here.

E: Continue. The next word is Green, please.

T: Green: grass, hat, ink, apple.


T: I don't think he is going to answer.

E: If the Learner doesn't answer in a reasonable time, about four or five seconds, consider the answer wrong. And follow the same procedures you have been doing for wrong answers. Say "Wrong." Tell him the number of volts. Give him the punishment. Read him the correct answer. Continue, please.

T: Green: grass, hat, ink, apple. Answer, please.

E: Go on with the procedure, please, Teacher.

T: Three hundred and fifteen volts. The answer is Ink.

[Learner screams.]

T: Next one --

L: I absolutely refuse to answer.

T: You got to. You get a shock if you don't answer.

[Teacher continues asking questions. Learner refuses to answer. Teacher continues to shock Learner with increasingly powerful voltage. Eventually, Learner fails to even grunt or groan. At 375 volts, Teacher stands up.]

T: I think something's happened to that fellow in there. I don't get no answer. He was hollering at less voltage. Can't you check in and see if he's all right, please?

E: Not once we've started. Please continue, Teacher.

[Teacher sits back down and sighs deeply.]

T: Cool: day, shade, water, paint. Answer, please. Are you all right in there? Are you all right?

E: Please continue, Teacher. Continue, please.

[Teacher applies the shock. No response comes from the other room.]

T: Something's happened to that man in there. Next one. Low: dollar, necklace, moon, paint. Something's happened to that man in there. You better check on him, sir. He won't answer or nothing.

E: Continue. Go on, please.

T: You accept all responsibility?

E: The responsibility is all mine. Correct. Please go on.

[Teacher returns to his list. He runs through the words as rapidly as he can read them, working his way up to and including 450 volts. No sound comes from the other room.]

T: That's that.

E: Continue using the 450 volt switch for each wrong answer. Continue please.

T: But I don't get anything!

E: Please continue. The next word is White.

T: Don't you think you should look in on him, please?

E: Not once we've started the experiment.

T: But what if something has happened to the man?

E: The experiment requires that you continue. Go on please.

T: Don't the man's health mean anything?

E: Whether the Learner likes it or not --

T: What if he's dead in there? I mean, he told me he can't stand the shock, sir. I don't mean to be rude, but I think you should look in on him. All you have to do is look in on him. All you have to do is look in the door. I don't get no answer, no noise. Something might have happened to the gentleman in there sir.

E: We must continue. Go on, please.

T: You mean keep giving him what? Four-hundred fifty volts, what he's got now?

E: That's correct. Continue. The next word is White.

[Teacher reads through the word pairs at a furious pace. The Learner does not respond. Each time, Teacher applies a 450 volt shock.]

T: White: cloud, horse, rock, house. Answer, please. The answer is Horse. Four hundred and fifty volts. Next word. Bag: paint, music, clown, girl. The answer is Paint. Four-hundred and fifty volts. Next word is Short: sentence, movie ...

E: Excuse me, Teacher. We'll have to discontinue the experiment.
And that's it. I liked it particularly when the Learner told the Experimenter: "I don't mean to be rude ..."

It actually happened as I have just described it to you. You now get to think about three not-so-simple questions.

Question First: Is this test in any way relevant to jury compliance, as I suggest?

Question Second: How would you have behaved had you been the Teacher?

Question Third: Are you sure?

Saturday, December 10, 2011

The Case of Cesar Fierro: My Analysis

In my previous post, I asked you to consider the case of Cesar Fierro and to deliberate via the comments. I was surprised as I prepared the post at how weak the case against Fierro actually was. An eyewitness and a confession should present a formidable case, and the jury clearly voted unanimously to convict, but I was nonetheless surprised at how lame the State's case was. Still, I tried to present the case as fairly and objectively as I reasonably could.

I wasn't surprised by the pro-defense comments from the Skeptical Readers. I repeat them below.

Andrew Hickey
Just from that evidence, pretty clearly not guilty. Confession made under dubious-at-best circumstances, quite probably with threats to his parents, no physical evidence tying him to the crime scene, and only one witness who sounds like his statement could plausibly have been part of a plea bargain.

The Doormouse
When you say he turned and was shot, do you mean he turned the car or his head? Its hard to shoot someone in the back of the head if they are facing you.

I vote not guilty. Does he have an alibi - yes, based on his landlord's testimony Is the prosecution's witness compromised? Think so, based on his bragging about how the police treated him. What is his motivation for testifying against Fierro anyway? Coerced confession - his mother and father's testimony as to their arrest is convincing and Fierro's mentioning his parent's were innocent in his confession seems telling.

I would say not guilty: I guess we are spoiled on TV shows where all the suspect interviews are video taped. Hopefully in the future all police interrogations of interviews should be taped so we won't get into this he said/he said problem

I cannot understand why the Defense did not demand testing on the items of clothing?
No gun,
No car stuck in yard,
No Rancher who they sold the gun to
Confession in question,
Snitch after 5 months since incident,
Don't buy this one.

Airborne Juror
It really should be impossible to sentence someone to death based on a witness with everything to lose followed by a confession which was likely coerced. Your previous post did a lot to highlight the startling problems that exist with police-obtained confessions, and here you present the perfect case to illustrate it. There is no evidence to speak of here that is above manipulation by otherwise interested parties - interested in getting themselves off the hook or interested in closing a case and making numbers on the board. No way, on the evidence presented in your post, that this one should be a conviction.

Insightful comments one and all. I have some observations not mentioned by any of those who commented. I include them below, trying to limit my point of view to that of a juror.

The Eyewitness
I'll review the eyewitness testimony in segments.
Olague revealed that about 2:15 a.m. on February 27, 1979, he and Fierro were together in front of the El Paso Public Library.
Well that sounds innocent enough. However, public libraries are typically not open at 2:15 in the morning. I presume, therefore, the two of them weren't actually interested in literature. I presume also that it wasn't merely coincidental the two of them were there at the same time. Assuming Olague is telling the truth, I would like to know what the two of them had been doing together before and what the two of them planned to do after.
Olague hailed a taxicab to go home. ... Fierro told Olague that after Olague was taken home he would go to his home in Juarez.
Really? How exactly would Fierro go to his home in Juarez? Do they have some sort of international cab service in El Paso? Can the cab carry paying passengers from El Paso to Juarez? Was Fierro planning on taking the cab to the border, walking across the border, then picking up another cab to take him to Juarez?
Olague got in the front seat and Fierro got in the back seat.
Really? That seems unusual as well. Convenient for Olague, but unusual nonetheless.
Olague requested Castanon to take him to 226 Wooldridge where he lived. As they neared the location Olague heard Fierro yell "stop" and as Castanon turned Fierro shot him in the back of the head.
As The Doormouse indicated, it seems hard to shoot someone in the back of the head if they are turning to look at you. The bullet wound, though, was behind the right ear. A juror might conclude that the cab driver was turning his head to the right when Fierro fired. Alternatively, a juror might conclude that the cab driver was looking straight ahead when a passenger in the front seat shot him behind the right ear. In either case, it makes absolutely no sense for Fierro to instruct the driver to stop, then shoot him without giving him an opportunity to stop. That left no one to drive the car.

Not to worry though. Olague was conveniently sitting in the front seat, and Olague responded brilliantly to the surprise shooting, just as Fierro must have known he would. Stay tuned.
Castanon fell into Olague's lap leaving blood on Olague's pants. The taxicab jumped the curb and ran into a yard, but Olague hit the brake and the engine died.
Fierro drove to Modesto Gomez Park. Fierro removed Castanon from the cab and dragged him some distance and then shot Castanon again, and took Castanon's wallet and watch and jacket. Olague stated Fierro used the jacket to wipe up some blood and threw the jacket out along the road they took to Juarez.
Whoa! That seems foolish. You have just shot a cab driver in the head and dumped his body and disposed of a bloody jacket. Still, you have a stolen cab with blood on the seats and you have the murder weapon. You have a passenger with blood on his pants. What one should do at this point is avoid law enforcement officers. I wouldn't expect that one would voluntarily drive a border checkpoint where heavily-armed, extremely-skeptical, law enforcement officers are almost certain to examine your car and ask you pointed questions.
The taxicab which Castanon had been driving was discovered across the international border in Juarez, Mexico, with bloodstains on the front seat and carpet. His jacket was discovered on the grounds of Bowie High School on a road leading from Modesto Gomez Park to Juarez.
I don't know whether or not any of the jurors knew where Bowie High School was in relation to Modesto Gomez Park, but if any of them did they should have realized that specific claim was hogwash. I offer below a map of the area courtesy of my good friends at Google. Bowie High School is not on a road leading from Modesto Gomez Park to Juarez.

It may seem like a minor point, but it cautions me that the State is willing to misrepresent the evidence even if nothing much is at stake. If I don't trust the State to tell me the truth, they are going to have one hell of a time convincing me beyond a reasonable doubt that the defendant is guilty.
He said Fierro had taken a silver watch from Castanon; the watch was never found. He said he and Fierro had sold the murder weapon to a rancher south of Juarez, but neither the rancher nor the gun was ever located.
More interesting is Olague's bloody pair of pants. He told the police that he could lead them to the pants. The police never took him up on his offer. I don't know if the jury was aware of that issue.
[Olague] testified that he and Fierro had been committing robberies together for six or seven months. ... He said that he had committed more than forty burglaries and that the police were aware of them, but that he had been charged with only one offense.
'Nuff said.
During one bizarre moment ... he accused a member of the jury of having purchased as stolen CB radio from him. He said that he had committed more than forty burglaries and that the police were aware of them, but that he had been charged with only one offense.
There is not a single portion of Olague's story that was corroborated. There was not a single portion of his story that made sense. More significantly, Olague demonstrated for the jurors that he would, on a whim, falsely accuse someone of a crime. He claimed one of the jurors fenced a stolen CB radio for him. For some reason, the police did not arrest the juror. Not even the police believed Olague was telling the truth.

The Confession
The commentors were less compelling in their explanation for rejecting Fierro's confession. Imagine if you were born and raised in Texas then called to sit on the jury of The People of Texas versus Cesar Fierro. You would be sitting in the jury box wearing a cowboy hat and cowboy boots while a Texas Ranger swore under oath that they did nothing to extort a confession from the defendant. [I've embellished just a bit.] On the other hand, you have the defendant, who was clearly far from an upstanding citizen, telling you an unlikely story of his parents being beaten and threatened with a cattle prod by the Mexican police to help the El Paso police extract a confession. Such a claim is easy to make but difficult to prove.

How could you decide who was telling the truth? Why would you take the word of low-life who had nothing to lose by lying over the word of several sworn police officers who could lose their job and be jailed for perjuring themselves?

As a skeptical juror, I would not have had to wrestle with such a conundrum. I would have rejected the confession simply because it wasn't recorded. If the police had simply recorded the interrogation and the confession, then there would be no question about what happened. Instead, the police choose to not record the interrogation and confession. As a skeptical juror, I would have deemed the failure to record as destruction of evidence.

If the police destroyed the results of DNA testing and then told me the DNA matched the defendant, I would simply refuse to accept the claim. I would be suspicious of the police behavior, but I would not have to conclude they were liars. If the evidence is not properly preserved, it is untrustworthy. I will not use untrustworthy evidence to send a man to prison, much less to the needle.

A Compliant Jury
The opposite of a skeptical juror is a compliant juror. We'll talk about compliant jurors in the next post.

Thursday, December 8, 2011

The Case of Cesar Fierro: Open Deliberation

I ask you to consider the following case as if you were a jury member in the trial of The People of Texas versus Cesar Robert Fierro. This means you are not allowed to research the case before reaching your vicarious verdict. You may consider only the information provided in the two summaries below. Once you read and considered the evidence, I ask that you use the comments to make your case for a Guilty or a Not Guilty vote.

In other words, I ask that you use the comments to deliberate the case.

First, I present the State's case as taken from the Texas Court of Criminal Appeals decision in Fierro v. Texas (1986), I have replaced each instance of "appellant" with "Cesar Fierro" or "Fierro." I introduced paragraph breaks to make the reading a bit easier.
On February 27, 1979, the body of Nicolas Castanon, an El Paso taxicab driver, was discovered in Modesto Gomez Park in the city of El Paso. Castanon had a bullet wound in his head behind the right ear and another bullet wound in his shoulder.

The taxicab which Castanon had been driving was discovered across the international border in Juarez, Mexico, with bloodstains on the front seat and carpet. His jacket was discovered on the grounds of Bowie High School on a road leading from Modesto Gomez Park to Juarez.

The cause of death was shown by autopsy to have been the bullet wound behind the right ear which fractured the first vertebra and the base of the skull and compressed the medulla oblongata. This stopped respiration and caused almost instantaneous death. It was estimated that the shot had been fired from no more than 15 inches away. The bullet fragment recovered revealed the deceased had been shot by a .357 Magnum or a .38 caliber Special. No valuables were found on the body.

Some months later on July 31, 1979, Geraldo (Jerry) Olague, age 16, personally contacted El Paso police officers. His written statement to the police led to the arrest of Cesar Fierro. The officers took Olague to Juarez where he pointed out the residence of Fierro mother and stepfather.

At trial Olague testified he was with Fierro at the time the deceased was shot. Olague revealed that about 2:15 a.m. on February 27, 1979, he and Fierro were together in front of the El Paso Public Library. Olague hailed a taxicab to go home. The taxi driver was Castanon. ...

Olague got in the front seat and Fierro got in the back seat. Fierro told Olague that after Olague was taken home he would go to his home in Juarez. Olague requested Castanon to take him to 226 Wooldridge where he lived. As they neared the location Olague heard Fierro yell "stop" and as Castanon turned Fierro shot him in the back of the head. Castanon fell into Olague's lap leaving blood on Olague's pants. The taxicab jumped the curb and ran into a yard, but Olague hit the brake and the engine died.

Olague was surprised and scared. Fierro told him to get into the back seat. Fierro got behind the wheel. Olague remembered asking Fierro why he shot Castanon, but he could not recall Fierro's response.

Fierro drove to Modesto Gomez Park. Fierro removed Castanon from the cab and dragged him some distance and then shot Castanon again, and took Castanon's wallet and watch and jacket. Olague stated Fierro used the jacket to wipe up some blood and threw the jacket out along the road they took to Juarez. The watch was discarded in a dumpster.

After reaching Juarez, the taxicab was abandoned and Fierro and Olague went to the home of Fierro's mother. Olague revealed that when the television news told of the murder Fierro laughed. Later Fierro and Olague went into the interior of Mexico where Fierro sold his .357 Magnum to a rancher. Olague then went to visit his father in Mexico, but Fierro later checked on him by telephone and warned him not to tell of the incident. After some months, Olague returned to El Paso and went to the police.

Fierro's written extrajudicial confession was also introduced into evidence. It was very similar to the details related by Olague. Fierro stated he had a .357 Magnum which had been stolen by his brother, that he shot the deceased and drove the automobile to a small park. After Olague dragged the body out of the cab, Fierro admitted he shot the deceased and took his watch. He stated he later threw the watch into a trash can on the way to Juarez. ...

Fierro contends the confession was inadmissible into evidence as it was not given voluntarily "and came about as the result of coercion."

The court conducted a hearing on the pre-trial motion to suppress the confession. ... The record reflects that after Olague gave his statement on July 31st Officers Holland and Medrano took him to Juarez and contacted Juarez police officers. Olague pointed out to all the officers the house where he had gone with Fierro after the shooting.

The Juarez officers were asked to communicate any information they obtained. Juarez Police Lt. Palacios called Medrano in El Paso about 5 a.m. and told him he had some information and asked Medrano to meet him and other Juarez officers for breakfast. Medrano contacted Holland and they drove to Juarez for breakfast. There they learned from Palacios and other Juarez officers FierroFierro's mother.

Holland and Medrano returned to El Paso and located Fierro in jail. They took him before Judge Baca ... where Fierro was given his Miranda rights in both English and Spanish. Later Fierro was taken to the police department and again warned.

In discussing the case with Fierro, Medrano asked him if he lived at a certain address in Juarez and gave his mother's name. When Fierro asked how Medrano got that information, Medrano told him it was from the Juarez police. Fierro then inquired if his mother was in custody and insisted she had nothing to do with the murder. Fierro stated his mother had once been arrested for possession of marihuana and the conditions in the Juarez jail were not good.

Medrano testified he truthfully had no information that Fierro's mother was in custody. To satisfy Fierro, Medrano called Lt. Palacios and handed the phone to Fierro. Medrano did not know what conversation took place, but Fierro seemed satisfied when it concluded. Thereafter the confession was taken from Fierro.

The time consumed was from about 9:35 a.m. until 10:15 or 10:17 a.m. Medrano denied that he threatened or coerced Fierro or beat him. He stated Fierro was given a cup of coffee and a pack of cigarettes and that the Fierro had freely given the confession. He denied that he had shown to Fierro two letters that had been taken from Fierro's mother.

Officer James Holland, Jr., testified that Fierro gave the confession freely and voluntarily, was not threatened or physically abused, etc. Judge Baca testified as to his properly warning Fierro of his rights. ...

... The jail nurse testified Fierro complained on August 3, 1979, of a throat infection and that he was injured while being interrogated. She did not testify she saw any bruises or injuries.

Socorro Reyna [Fierro's mother] testified at 3:30 a.m. on August 1, 1979, the Juarez police came to her home and took her and her husband to jail. They took from them two letters, one from the Cesar Fierro and one from his brother. They were held in jail until 7 p.m. that day and then released. Alfredo Murga Garcia, Fierro's stepfather, testified the armed police came to the house at 3 a.m. on August 1, 1979, and took him and his wife to jail and did not release them until about 7 p.m.

Cesar Fierro's wife, Laticia Fierro, testified she saw Fierro in jail on August 3rd or 4th in 1979 and he had bruises on his face.

In his brief testimony the Fierro testified his confession was not voluntary, that Medrano had told him that his mother was in jail and would remain there until he confessed. He stated Medrano showed him two letters addressed to his mother, one from his brother and one from him. He knew they had been taken from his mother. He also stated Medrano hit him three or four times on the side of the head. He never mentioned any telephone conversation with Lt. Palacios nor was he asked. ...

It is observed that the issue of the voluntariness of the confession was later submitted to the jury in the court's charge and was rejected by the jurors.
Now for the defense case, I offer the following description of the trial from Executed on a Technicality by David R. Dow:
Because no physical evidence connected Fierro to the crime, his conviction and sentence rested entirely on two pieces of evidence: first, the testimony of Olague, and second the confession. The confession included details provided by Detective Medrano, like the location and date of the crime, the disposal of the body, and the route Fierro had supposedly taken back to El Paso. Oddly, it also included a statement that his mother and stepfather had nothing to do with the crime.

Olague's testimony was needed to confirm the veracity of the confession, to preclude Fierro from disavowing it. ... [Olague] testified that he and Fierro had been committing robberies together for six or seven months. He said Fierro had taken a silver watch from Castanon; the watch was never found. He said he and Fierro had sold the murder weapon to a rancher south of Juarez, but neither the rancher nor the gun was ever located. He said the cab had skidded out of control when Castanon was shot, jumping the curb and landing in someone's front yard, but no one in the neighborhood heard a gunshot or saw or heard a cab go out of control.

During one bizarre moment ... he accused a member of the jury of having purchased as stolen CB radio from him. He said that he had committed more than forty burglaries and that the police were aware of them, but that he had been charged with only one offense. ...

The defense did what it could. It pointed out that Fierro had signed the confession -- the details of which were provided by the detective conducting the interrogation -- only because he knew what would happen to his mother and stepfather if he did not confess. It called his parents, who testified to the brutal treatment to which they were subjected. [The mother claimed she was beaten. The stepfather claimed he was threatened with application of a cattle-prod device to his genitals.] It called Fierro's landlord, who swore Fierro was at home on the night of the killing.
Ladies and gentlemen of a small cohort of the reading public, it is now up to you to argue your point and cast your vote in the case of The People of Texas versus Cesar Roberto Fierro. Please use the comments to do so. Remember that you may base your arguments and your decision only on the evidence presented in this blog post.

Deliberations are open.

Wednesday, December 7, 2011

Interrogation Based False Confessions

Anyone working to reverse a wrongful conviction stands a decent chance of having to deal with a false confession. Since few people can even imagine that they would confess to a crime they did not commit, a confession is deemed compelling evidence of guilty both during and after a trial.

I am working on such a case. Most recently I have drafted a thorough and comprehensive petition for absolute pardon. In that petition, I included a chapter discussing the problem of false confessions in general before turning to the false confession of the petitioner.

I include that chapter below, modified to remove the petitioner's identification. Hopefully, the post will provide useful background information for anyone wrestling with a false confession.


There can be no doubt that false confessions occur with distressing frequency. The national Innocence Project reports that in 25% of all DNA exonerations, factually innocent defendants had made incriminating statements, pled guilty, or delivered outright confessions.

In 2003, Rob Warden studied the role of false confessions in Illinois homicide prosecutions since 1970. He found that 33% of the 42 people wrongfully convicted had falsely confessed.

In this post we will consider some of the empirical and experimental evidence that standard police interrogation techniques cause many people to confess to crimes they did not commit. We will briefly discuss three cases of false confession in Virginia that were later corrected by gubernatorial pardon. We will then briefly discuss three experiments that show such false confessions are unfortunately common and easy to extract.

The Norfolk Four
In 1997, four Navy service members confessed to the rape and murder of a woman in Norfolk Virginia. Despite recanting their confessions, and despite being excluded by crime scene DNA, each was found guilty. Three were sentenced to one or more life terms in prison. One was sentenced to 8.5 years.

A few years later, police matched the crime scene DNA against Omar Ballard, who was then serving time for an unrelated offense. Ballard confessed to the rape and murder, gave an accurate description of the physical evidence, and insisted he had acted alone. He added: "them four people that opened their mouths is stupid."

Though none of the Norfolk Four had ever mentioned Ballard, as they freely implicated others, the police changed their theory of the crime. Ballard was the ringleader but didn't want to implicate the others for fear of being labeled a snitch. The others were accomplices who didn't want to implicate Ballard because they feared him.

In 2005, three of the four petitioned Governor Mark Warner for clemency. Governor Warner did not rule on the petition, and Governor Tim Kaine then considered it. In 2009 Governor Kaine granted a conditional pardon to the three petitioners. In 2009, U.S. District Court Judge Richard L. William vacated the murder and rape convictions of Derek Tice, one of the Norfolk Four. In 2011, the United States Court of Appeals for the Fourth Circuit affirmed that ruling.

David Vasquez
In 1984, the nude body of Carolyn Jean Hamm was discovered in her basement of her Arlington, Virginia home. According to the police reports, she had been assaulted and raped before being hanged from a water pipe.

Two witnesses reported they had seen David Vasquez in the area around the time of the murder. The police escorted Vasquez to the police station and interrogated him. They lied to him about finding his fingerprints at the scene. They fed him information about details of the crime and encouraged him to restate them. They yelled at him when his answers did not conform to the details.

Finally, during his third interrogation session, Vasquez told the police he might have helped the victim "move something." Vasquez began speaking of a dream he had that paralleled the crime. The police recorded only the last 8 minutes of Vasquez' three interrogation sections. In that brief recording, David Vasquez recounted his "dream" of rape and murder.

The person who actually raped Carolyn Hamm was a secretor. That means that his blood type could be determined from his bodily fluids, including his semen. Forensic testing thereby excluded Vasquez as the contributor of the semen stains found at the scene and on the vaginal swabs. That fact, however, didn't cause the police to question the confession. They simply modified their theory to include an unidentified accomplice.

The existence of a hypothetical accomplice is so commonly used by police to buttress an otherwise untenable case that the hypothetical accomplice has become known as The Unindicted Co-Ejaculator. As we have seen, a hypothetical accomplice was employed in the case of the Norfolk Four.

Realizing that their client did not stand a chance at trial, given his confession, the Vasquez defense team accepted an Alford plea to avoid the capital murder charge. Vasquez was sentenced to 20 years imprisonment.

While Vasquez was serving his wrongful imprisonment, police investigations tied Terry Timothy Wilson Spencer to four eerily similar murders. Three of the murders had occurred in the months before Hamm's murder; one had been occurred after Vasquez was imprisoned. Though the DNA from the Hamm murder was insufficient to allow testing, given the technology at the time, the DNA from the other four murders proved Spencer to be the rapist in each of those cases.

In 1989, Governor Gerald Baliles pardoned David Vasquez. Regarding her support for the pardon, Commonwealth Attorney Helen Fahey said: "I think everyone involved tried to do the right thing. I think people should know that; that even when the system didn't work, people were doing their job and worked hard. It just didn't work."

Earl Washington, Jr.
No one argues that Earl Washington was a decent person. No one argues, not even Earl Washington himself, that he did not brutally beat and sexually assault 78-year-old Hazel Weeks. Washington broke into her house to steal the .22 caliber handgun she kept on top of her refrigerator. He planned to shoot his brother with that gun. By his own admission, Hazel Weeks was merely an unfortunate and helpless target of opportunity.

It is therefore not surprising that no one argues Earl Washington was a decent person. Earl Washington, however, was not guilty of the crime for which the Commonwealth nearly executed him.

During Washington's initial interrogation, he confessed to his crimes against Hazel Weeks. When he was soon thereafter questioned about a recent unsolved rape of a young woman, he confessed to that crime. When asked about the unsolved murder of Rebecca Lynn Williams, he confessed to that crime as well.

By the end of a series of interrogations, none of which were particularly aggressive, Earl Washington had confessed to three break-ins, two malicious woundings, one attempted rape, two actual rapes, two robberies, a burglary, and capital murder. Earl Washington confessed to every crime about which the police asked.

The police and prosecutor had plenty of reason to be suspicious of Washington's confessions. So inconsistent were they, so devoid of insight into the crimes, most were disallowed before trial. His confession regarding the murder of Rebecca Lynn Williams, however, was allowed to stand.

With respect to her murder, Washington had been unable to provide her race, her height, or the number of times she had been stabbed. He said he had stabbed her once or twice. She had in fact been stabbed 38 times.

Washington did not know where she lived, though she was killed in her own apartment. He did not know that her door was undamaged. He claimed to have kicked it in.

Washington did not know that her two children were with her at the time she was murdered. He did not know she had been raped.

The jury found Earl Washington guilty of capital murder, though there was no forensic or witness testimony to tie him to the crime. It is well established that juries find confessions compelling.

Nine days before his execution, Earl Washington, Jr. was granted a stay when his new defense team petitioned for a state writ of habeas corpus. While the petition was pending, the new defense team discovered a report showing that the Virginia Division of Forensic Science had analyzed semen stains on a blanket from the murder scene. The Commonwealth had dutifully provided that report to the defense, but Washington's trial lawyer had ignored it.

The report showed the semen at the crime scene came from a secretor, from someone with Type A blood. Neither Earl Washington nor the victim's husband had Type A blood. The Commonwealth agreed to subject the biological evidence to DNA testing. That testing confirmed that the stains could not have come from Earl Washington, Jr.

The testing was too late, however, to form the basis of any legal proceeding. Under the law at that time, new evidence had to be presented within 21 days of sentencing. Earl Washington therefore petitioned Governor Douglas Wilder for clemency. Governor Wilder commuted Washington's sentence to life imprisonment. Governor James Gilmore later granted Washington an absolute pardon. After almost eighteen years in prison, most of those spent on death row, Earl Washington finally walked free.

Experimental Evidence of Interrogation Induced False Confessions
In 1996, researchers Saul Kassin and Katherine Kiechel demonstrated that police interrogation techniques frequently cause subjects to falsely confess. More significantly, their experiment demonstrated that people could easily be convinced they are guilty, though they are not. Many of those persuaded of their guilt will confabulate events. They will imagine details to make sense of a false memory or belief.

In the experiment, 75 undergraduate students were asked to perform an alleged reaction-time test. The subject and a test confederate were seated across a table from the experimenter. The confederate read a list of letters and the subject typed them on the keyboard. The subject was specifically warned not to hit the ALT key, because doing so would cause the program to crash and data to be lost. After 60 seconds of testing, the computer seemingly crashed, and the experimenter accused the subject of hitting the ALT key.

Initially, all 75 test subjects denied guilt. Then, in approximately half the cases, the experimenter asked the confederate if she had witnessed the subject hitting the ALT key. By experimental design, the confederate always confirmed that she had witnessed the subject doing so, even though none of the subjects had. In other words, the confederate was there to provide false evidence of guilt.

In all cases, the experimenter then wrote a standardized confession: "I hit the 'ALT' key and caused the program to crash. Data were lost." The experimenter asked the subject to sign the confession, the consequence of which would be a phone call from the principal investigator. If the subject refused, the request was repeated a second time. Overall, 69% of the subjects signed the confession, though none had hit the forbidden key.

These results might be easily dismissed, since none of the subjects faced any serious consequence for falsely confessing to a relatively inconsequential act. Perhaps that is so. The more interesting portion of the test, however, remains to be described. We shall do that now.

The experimenter escorted the subject from the test area, leaving the confederate behind. In the reception area, the experimenter and the subject encountered the next subject to be tested. The next subject to be tested, however, was also a test confederate. The experimenter explained the test session would need to be rescheduled, then left the room to retrieve his appointment calendar. The second confederate then asked the actual test subject "What happened?" The discussions were surreptitiously recorded and later reviewed to see if any of the subjects had come to believe they were indeed responsible for what had happened.

Only unambiguous expressions of guilt were counted. Examples of unambiguous expressions not were "I hit the wrong button and ruined the program" and "I hit a button I wasn't supposed to."

Any expression prefaced with "he said" or "I may have" or "I think" was not counted as a false belief of guilt.

Overall, 28% of the subjects had somehow become wrongly convinced of their guilt during their brief, non-confrontational experience. Even though none of the test subjects had pressed the offending key, and even though none of them had been subjected to the rigors of a police interrogation, 69% of them confessed and 28% of them actually believed themselves to be guilty.

More startling still is the powerful effect of introducing false evidence into the interrogation. In one cohort of test subjects (those subjected to rapid reading of the questions and to false evidence of guilt), 100% of the subjects confessed and 65% of the subjects believed they were indeed guilty.

Clearly, lying to the subjects about the evidence stacked against them can lead to false confessions. It can also cause people to actually believe they committed a crime, though they did not.

One particularly troubling interrogation technique is to subject the suspect to a polygraph exam then tell him he failed though he did not. Even the National Research Council recognizes the risk of such a devious interrogation technique. In 2003, their Committee to Review the Scientific Evidence on the Polygraph published The Polygraph and Lie Detection. From that report, we find:
False confessions are more common than sometimes believed, and standard interrogation techniques designed to elicit confessions -- including the use of false claims that the investigators have definitive evidence of the examinee’s guilt -- do elicit false confessions. There is some evidence that interrogation focused on a false positive polygraph response can lead to false confessions. In one study, 17 percent of respondents who were shown their strong response on a bogus polygraph to a question about a minor theft they did not commit subsequently admitted the theft.
There is still more to be learned from the experiment, beyond the fact that people can be easily prompted to falsely confess, and the fact that many innocent people actually come to believe their guilt. After the experiment was over, the experimenter brought all the subjects back to the lab. He reread the list of letters they had all been asked to type. He asked them if they could reconstruct how or when they hit the ALT key. It was at this point that the experimenters observed evidence of confabulation. Responses showing confabulation were similar to "Yes, here, I hit it with the side of my right hand when you called out the "A."

Overall, 9% of the subjects confabulated details to support their belief that they had caused the computer to crash and data to be lost. The cohort subjected to false evidence of their guilt (and a rapid reading of the letters) confabulated at a much higher rate: 35% of that cohort confabulated details of how they had caused the computer to crash.

Experimental Confirmation of Interrogation Induced False Confessions
In 2003, Robert Horselenberg (and two others) reported that they had effectively replicated the findings just discussed. Horselenberg modified the test such that the experimenter himself claimed to have witnessed the subject hit the forbidden key. In Horselenberg's experiments, all subjects were given false evidence of their guilt.

Horselenberg also increased the cost of a false confession. Anyone who confessed would lose 80% of the fee they were to be paid for their participation in the test.

Despite the increased penalty for confessing, a greater percentage of subjects falsely confessed in Horselenberg's experiment (82%) compared to Kassin's experiment (69%). Also a greater percentage were actually convinced of their guilt after Horselenberg's experiment (42%) compared to those subjected to Kassin's experiment (35%).

Maximization and Minimization Techniques
Lying about incriminating evidence is one many techniques broadly classified as maximization techniques. Other maximization techniques include dismissing the subject's claims of innocence, assuring him instead of his conviction, stressing that no one believes him now and no one will believe him at trial, and implying the penalty will be severe unless he confesses.

At the other end of the interrogation spectrum is a cluster of tactics classified as minimization techniques. These techniques include minimizing the subject's role in the alleged crime, empathizing with him, convincing him the interrogator is interested only in helping him, and implying that the penalty will be minimized if he confesses.

The psychologically based maximization and minimization techniques have replaced the physically based strong-arm techniques of long ago. Implicit threats and promises have now replaced the explicit threats and promises now forbidden by court rulings.

It turns out to be unnecessary to beat a subject, or explicitly threaten him, to extract a confession. Playing with the subject's mind has proved to be just as effective. The new techniques do not seemingly need to be applied with any particular finesse to be effective. Apparently, they need only be applied with persistence and in generous portions.

Maximization and minimization techniques are well established and widely taught. By far the most influential and practical manual at the time was Criminal Interrogation and Confessions, by Inbau, Reid, and Buckley. The book was originally published in 1967. The fourth edition was published in 2001. According to the fourth edition, hundreds of thousands of investigators had already received training in the techniques presented therein. The U.S. Supreme Court has cited the book.

Just this year, in 2011, Allyson Horgan (and three others) reported that they were able to easily extract false confessions using maximization and minimization techniques. In their experiment, undergraduate subjects and confederates were paired, instructed to work together on some tasks and work independently on others. The confederate at some point asked the subject for assistance on a task to be solved independently, thereby giving the subject the opportunity to cheat by helping.

Some subjects cheated, some did not. This experimental arrangement allowed the experimenters to compare the rate of true and false confessions.

In each case, the experimenter accused the subject of cheating, whether they had or not. The experimenter stated that the supervising professor had been notified, was irritated, and might consider the incident to constitute academic dishonesty. The subject was asked to sign a statement admitting their participation in the cheating incident.

With respect to false confessions, the result of Horgan's experiment should no longer be surprising. Of those students subjected to standard maximization and minimization techniques, 42% of those who did not cheat confessed they had.

What is new and revealing about Horgan's experiment is the ratio of false confessions to true confessions. Use of standard maximization and minimization techniques caused one false confession for every two true confessions.

Horgan, however, also subjected a different cohort of subjects to modified maximization and minimization techniques. The modified techniques excluded implicit threats of severe punishment and explicit promises of leniency. The modified minimization relied more heavily on sympathy, flattery, and appeal to conscience; the modified maximization relied more heavily on an unfriendly attitude and a firm belief in the subject's guilt.

Surprisingly, the modified techniques resulted in both a higher rate of true confessions and a lower rate of false confessions. The ratio of true-to-false confessions rose from 2-to-1 to nearly 5-to-1.

Coupled with the earlier experiments of Kassin and Horselenberg, Horgan's experiment adds to a substantial body of work that shows false confessions are easily induced. False confessions are particularly easy to induce when the subjects are presented with false evidence of their guilt, implicitly threatened with dire consequences if they do not confess, and implicitly offered leniency in return for confessions.